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Takenaka, Toshiko --- "Adequate Compensation for Patent Infringement Damages: A Comparative Study of Damage Measurements in Japan and the United States" [2009] ELECD 256; in Takenka, Toshiko (ed), "Patent Law and Theory" (Edward Elgar Publishing, 2009)

Book Title: Patent Law and Theory

Editor(s): Takenka, Toshiko

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424138

Section: Chapter 21

Section Title: Adequate Compensation for Patent Infringement Damages: A Comparative Study of Damage Measurements in Japan and the United States

Author(s): Takenaka, Toshiko

Number of pages: 26

Extract:

21 Adequate compensation for patent
infringement damages: a comparative
study of damage measurements in Japan
and the United States
Toshiko Takenaka



1 Introduction
To recover from its deep recession, the Japanese government set a national
goal to become `a nation based on intellectual property' and began an over-
haul of its intellectual property system.1 Japan's Ministry of Economy and
International Trade (METI) and its agency, the Japan Patent Office (JPO) were
convinced that the revival of the US economy resulted from new business
opportunities arising from technological innovations, which were promoted by
the increased incentives brought about by the Reagan and Bush presidential
administrations' adoption of a `pro-patent policy'.2 To follow the US exam-
ple, all aspects of the Japanese IP system were reviewed in light of that of their
US counterparts. A huge difference in patent infringement damage awards by
US and Japanese courts revealed by the review led to a revision of Japanese
patent law, which involved codifying US case law in order to reduce the paten-
tee's burden of proof to establish causation.3
Cases decided during the discussion and enactment of the revision indi-
cated a significant impact of the revision on Japanese patent infringement
damages.4 These cases awarded much bigger damages than those that had

1 Toshiko Takenaka and Ichiro Nakayama, `Will Intellectual Property Policy
Save Japan from Recession? Japan's Basic Intellectual Property Law and its
Implementation through the Strategic Program', (2004) 35 IIC (No. 8) 877.
2 ...